Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated,
decides as follows:

THE FACTS

The applicant, Mr Zdzisław Nitecki, is a Polish
national, who was born in 1932 and lives in Bydgoszcz, Poland. The respondent
Government were represented by Mr Krzysztof Drzewicki, from the Ministry
of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

In 1976 the applicant was diagnosed with amyotrophic
lateral sclerosis (ALS) also known as Lou Gehrig’s disease.

In June 1999 the applicant was prescribed Rilutek,
a drug used to treat ALS.

On 14 June 1999 the applicant asked the Kujawsko-Pomorski
Health Insurance Fund (Kasa Chorych) to refund him the cost of the drug. He pointed
out that he was a pensioner and that the price of a prescribed monthly
intake of the drug exceeded his means.

In a letter of 28 June 1999 the Fund declined
the applicant’s request in the following terms:

“In reply to your letter (...) I should explain
that Kujawsko-Pomorski Health Insurance Fund does not have legal possibilities
of refunding the price you paid for drugs. The Ministry of Health and
Social Security publishes registers of drugs which are refunded and
according to those registers the Health Insurance Funds make either
partial or full refunds. In your case, four out of five drugs are fully
refunded. As for Rilutec, it is included in the register of refunded
drugs (patient’s contribution at 30%) [...]. The Health Insurance
Fund pays 70% of the price of [that drug].

I should also inform you that you can be assisted
by [...] the Bydgoszcz Social Services (...).”

On 19 July 1999 the applicant asked the Kujawsko-Pomorski
Regional Office (Urząd Wojewódzki) to quash the decision of the Fund. He submitted
that he could not afford to pay for the drug and that he had no children
to help him. The Regional Office transmitted the applicant’s request
to the Bydgoszcz Social Services.

On 11 August 1999 the Director of the Bydgoszcz
District Social Services (Rejonowy Ośrodek Pomocy Społecznej) issued a decision declining
the applicant’s application for the drug refund.

In a letter of 13 August 1999 the Bydgoszcz Municipal
Social Services (Miejski Ośrodek Pomocy Społecznej) informed the applicant
that:

“(...) According to the applicable legislation
the Director [of Social Services] issued a decision declining your request
for assistance. It appears from your file that the total income of your
family amounts to PLN 1,924.54 and is above the threshold set in Article
4(1) of the Social Security Law. Despite the fact that you have faced
high costs for the purchase of drugs, the social services –
because of limited resources designated for that purpose – declined
your request (...).

It should also be mentioned that it is possible
to approach a certified doctor – through the Social Security Board
– in order to change a degree of invalidity, which may result in the
grant of a nursing benefit.”

On 31 August 1999 the Ministry of Health and Social
Services advised the applicant about the legislation concerning the
refund of drugs. The Ministry’s letter was in the following terms:

“The Kujawsko-Pomorski Health Insurance Fund
correctly informed you in a letter of 14.07.[99] that there were no
legal possibilities of refunding the expenses you incurred for purchasing
drugs.

Rilutek is listed in the register of drugs used
in chronic illnesses (...) for a payment of 30% [of the price]. That
drug is refunded at the rate of 70% and the Health Insurance Fund pays
such a part of the price. ...

As Rilutek continues to be a very heavy financial
burden for patients, the Pharmacy Department has started to make efforts
to decrease the rate at which it has to be paid for by patients, so
that it becomes available free of charge. The matter has been transferred
to specialists ...

The end of this work concerning the change of
registers is foreseen for the fourth quarter of the year. However, any
decrease in the rate at which [the drug] has to be paid for by patients
depends on the financial resources available to the Health Insurance
Funds.”

On 1 September 1999 the applicant’s degree of
invalidity was increased from the second to the first degree.

The applicant lodged with the Supreme Court (Sąd Najwyższy)
a complaint concerning the decision of the Ministry of Health and Social
Security but on 29 February 2000 the court informed him that no appeal
was available against the Ministry’s decision.

B. Relevant domestic law and practice

The public health service in Poland is regulated
by the Law on Public Health Insurance of 6 February 1997. National Insurance
Funds, which represent the interests of the insured, buy medical services
from contractors. They also refund the cost of drugs in whole or in
part.

COMPLAINTS

The applicant complained under Article 2 of the
Convention that the refusal to refund the full price of a life-saving
drug violated his right to life. In that connection, he submitted that
he had been making social security contributions for over thirty-seven
years. The applicant could not afford to pay 30% of the price of the
required drug and therefore could not follow the prescribed pharmaceutical
treatment. Consequently, his medical condition deteriorated and on 1
September 1999 his invalidity was assessed at the highest degree. Although
he is one of two ALS sufferers in Poland who has survived longer than
four years, the inability to follow the prescribed pharmaceutical treatment
will result in his untimely death.

The applicant also submitted that the facts of
his case disclosed a violation of Articles 8 and 14 of the Convention.

THE LAW

1. The applicant complained that the refusal to
refund the full price of a life-saving drug violated his right to life
guaranteed by Article 2, which in so far as relevant provides:

“1. Everyone’s right to life shall be protected
by law. (...)”

The Government submitted that Article 2 of the
Convention seemed to be “ratione materiae hardly applicable” in the instant case and
that the applicant did not exhaust domestic remedies.

The Court recalls that the first sentence of
Article 2 enjoins the State not only to refrain from the intentional
and unlawful taking of life, but also to take appropriate steps to safeguard
the lives of those within its jurisdiction. It cannot be excluded that
the acts and omissions of the authorities in the field of health care
policy may in certain circumstances engage their responsibility under
Article 2 (see Powell v. the United Kingdom [decision], no. 45305/99, 4.5.2000).

The Court has held in cases involving allegations
of medical malpractice that the State’s positive obligations under
Article 2 to protect life include the requirement for hospitals to have
regulations for the protection of their patients’ lives and also the
obligation to establish an effective judicial system for establishing
the cause of a death which occurs in hospital and any liability on the
part of the medical practitioners concerned (see, among other authorities, Erikson v. Italy,
[decision], no. 37900/97, 26.10.1999; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR
2002).

Furthermore, with respect to the scope of the
State’s positive obligations in the provision of health care, the
Court has stated that an issue may arise under Article 2 where it is
shown that the authorities of a Contracting State put an individual’s
life at risk through the denial of health care which they have undertaken
to make available to the population generally (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001-IV).

Turning to the facts of the instant case, the
Court notes that the applicant submitted that despite the fact that
he had been making social security contributions during more than thirty-seven
years of his professional career, the State refused to refund him the
full price of a life-saving drug. However, the Court notes that the
applicant’s social security contributions made him eligible to benefit
from the public health service in Poland. The applicant, like other
entitled individuals, has access to a standard of health care offered
by the service to the public. In fact, it appears that over many years
he benefited from medical treatment and drugs paid for by the public
health service.

The applicant was refused the full refund of
a drug prescribed to him for the first time in June 1999. Under the
standard of care available to all patients, the drug refund scheme provided
for a 70% refund while the remaining 30% had to be paid by the applicant.

Bearing in mind the medical treatment and facilities
provided to the applicant, including a refund of the greater part of
the cost of the required drug, the Court considers that the respondent
State cannot be said, in the special circumstances of the present case,
to have failed to discharge its obligations under Article 2 by not paying
the remaining 30% of the drug price.

Accordingly, the Court, assuming that the applicant
exhausted domestic remedies, concludes that the complaint under Article
2 of the Convention is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be rejected in accordance with
Article 35 § 4.

2. The applicant also complained of a violation
of Article 8 of the Convention (the right to respect for private and
family life).

However, having regard to its finding in respect
of Article 2 of the Convention, the Court considers that no separate
issue arises under Article 8 of the Convention which requires examination.

3. Finally, the applicant claimed that the facts
of his case disclosed a breach of Article 14 of the Convention (prohibition
on discrimination).

The Court recalls that Article 14 only prohibits
differences in treatment which have no objective or reasonable justification.
However, the Court finds such justification to exist in the present
health care system which makes difficult choices as to the extent of
public subsidy to ensure a fair distribution of scarce financial resources.
There is no evidence of arbitrariness in the decisions which have been
taken in the applicant’s case. Accordingly, this part of the application
is also manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and must be rejected in accordance with Article 35 § 4.